The Issues:

Defendant agreed to pay “the claimant’s costs of the action to be the subject of detailed assessment on a standard basis in default of agreement”. The cost of the After the Event (‘ATE’) Insurance premium was disputed.

Crucial to the dispute regarding the amount of ATE premium, was the fact that in September 2013, (shortly before trial in October 2013) the claimant, without warning the defendant, took out additional “top-up” cover. The existing cover was £50,000, but the defendant estimated existing costs were £290,000.00 and future estimated costs were £290,000.00. The claimant purchased additional staged top-up cover - the premium was £319,315.07 up to 45 days before trial and £533,017.13 within 45 days of trial.  Notice of Funding was given to the defendant only once the top-up cover was in place.

The initial decision was decided at an assessment hearing where Regional Costs Judge, District Judge Moss ordered that the defendant pay the claimant the sum of £82,513.07.  This was despite DJ Moss initially deciding it was reasonable for the claimant to ‘top up’ the premium, even at a late stage in the proceedings.  He concluded that had the claimant’s solicitors sought to increase the indemnity when they ought to have realised that £50,000.00 cover was insufficient then additional cover would have been available on more favourable terms than those offered in 2013 and the way the policy had been structured meant that the defendant had not had opportunity to settle the claim before the final stage was reached.

The claimant appealed against the order and permission was granted in March 2017.

The matter was then heard by Mr Justin Martin Spencer sitting at the Manchester District Registry.

The claimant argued that at the time when the ‘top up’ insurance was taken out this was necessary to protect the claimant’s position as to costs, should the claimant fail to beat the Part 36 offer. 

The defendant’s submissions were based on the fact that an appeal court should not interfere with  findings of fact and that the District Judge had been correct in his approach that the extent of additional cover and the amount of premium took the second premium outside the scope of the original kind of ATE policy.

Held:

1. The claimant does not need to consult the defendant before purchasing top-up cover even if it is very expensive and might have allowed for a settlement if the warning had been given.
2. The premium was recoverable notwithstanding that the claimant had purchased it at a very late stage (a closed trial) which inevitably meant that the premium was much more expensive than it would have been if top-up cover had been obtained earlier.
3. The top up premium incurred in September 2013 was recoverable even though it had been incurred after 1 April 2013.
4. There was an important distinction between a case where a Cost Judge decides whether the level of cover is too high and a case such as this one where there was a suggestion that the underwriting was flawed.He added that “it could be said that the defendant was treated unfairly in that he was given no opportunity to settle the case before the additional insurance liability was incurred.Thus, having taken a reasonable approach to the claim at the mediation, he finds himself penalised by an eye-watering premium as part of the costs.However on appeal it was considered that sympathy towards the defendant was misplaced.The defendant chose to fight this claim bullishly, indeed arguably aggressively, and gave every indication to the claimant that he was going to fight the case to trial behind the Part 36 offer.The defendant chose not to settle this until a very short time before trial – he could have made an additional Part 36 offer at any time in the years following the abortive JSM in November 2011 but chose not to.Any defendant who settles late, particularly this late before trial, must know that a reasonable claimant will probably take out additional ATE insurance, and the Notice of Funding dated 10^th September 2013 will surely have come as no surprise. Furthermore, the defendant should have anticipated that the premium would be significant”.

As a result the premium was allowed in full.

Comment:

This is a welcome decision for claimants where there is no choice but to press on with a claim when the defendant seeks to defend a claim very close to, or indeed to trial. It is of particular importance to note that the existing cover was purchased prior to 1 April 2013 but the top up premium was recoverable even though it was purchased in September 2013.

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